as the same is allowed upon the recapture of private property.

The reason for the distinction, as established by the authorities in the English law, is, that the recapture of a vessel employed in the service of the government, is an obligation of a vessel of war, lying in the direct path of the duty in which it is engaged a duty of the same character, and equally imperative as that of rendering aid to a ship of war in battle.

The soundness of this reason for witholding com pensation as salvage, for the recapture of a public vessel, is readily recognized; but as just ground for the distinction, between the recapture of public and private vessels, it is not so easily appreciated.

Can it be said to be any less the duty of the na val forces of the government to succor, and protect the ocean commerce of its citizens, than it is to protect public property upon the seas? Indeed, is not the duty, considered simply as an obligation, of precisely the same character, differing only in degree?

The capture of a merchant vessel by a belligerent cruiser, is a blow struck at the wealth and consequent means of resistance of the adversary. By the recapture, this blow is averted.

It is the paramount duty of a vessel of war to go to the aid of another, in battle with the enemy; and in doing so, to leave a captured merchant ves sel in the possession of an enemy's cruiser. The im portance of success in the naval conflict exceeds that of the recovery of the merchant vessel. But, suppose the merchant vessel to be not only laden with a precious cargo, but to be freighted with millions of treasure, it is easy to perceive that the import

ance of her recapture might, for the moment, outweigh that of aid in the pending battle.

It is obvious, therefore, that the duty of recapture by a public vessel, is applicable no less to private than to public property, and the policy which withholds salvage compensation for the performance of this duty in the one case, is precisely the same as it is in the other.

An attempt was made at the last session of the Congress of the United States, to obtain a repeal of the act providing for the payment of salvage in cases of recapture, except upon the recapture of neutral property.

The wisdom and justice of such repeal would seem to be too apparent to justify opposition.

JOINT-CAPTURE.

[SINCE the publication of the former edition of this work, no other change has been effected in the laws of the United States, in relation to joint-capture, than by the statute provision, which substitutes the words "within signal distance" for the words "in sight," in the designation of the vessels entitled to share as joint-captors of a prize.

If it were the purpose of this change to render the designation more definite, it may be doubted if such purpose has been accomplished.

What is to be regarded as "signal distance," is a question for judicial determination; and it is apparent that this determination must vary with the varying circumstances of fog, and storm, and darkness, and intervening obstructions, which may be the attending incidents of a capture.

The rights of joint-capture by the concert and material co-operation of vessels which are neither in sight, nor within signal distance, at the time of the capture, of course remain unaffected by the statute provision.

In several important cases of capture made in the Gulf of Mexico, by the United States vessel of war New London, during the present war in the Uni ted States, the public ships, Massachusetts and R. R. Cuyler, were admitted, by judicial decree, to the rights of joint-captors, though not in sight or within signal distance when the captures were made, solely in recognition of their rights as co-oper ators, by previous concert.1

RESCUE.

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[IN the former edition of this work, it was stated, that if a neutral vessel of commerce should be captured by a belligerent cruiser, and a small force be placed on board, with a prize master, to carry into port for adjudication, an attempt on the part of the master and crew of the captured vessel should be made to effect a rescue; such attempt would, of itself, subject the vessel to condemnation, which might otherwise be entitled to restitution.

Such is unquestionably the well-settled law of

nations.

It is thus distinctly declared, by that learned master of prize law, Mr. Justice Story, in his brief but valuable treatise on prize law, published in the American Encyclopedia.

' Vide MS. Decisions-the steamer Henry Lewis, the steamer Anna, and seven other vessels-U. S. Dist. Court, New York.

"The right of search draws after it the right to capture and send in the visited ship for adjudication, whenever (though the ship and cargo are under neutral papers) there are circumstances of just suspicion, as to her real character.

"The neutral, under such circumstances, is bound to submit, and wait the regular result of the adjudication of the proper tribunals. If, after the capture, the neutral crew rise, and regain the neutral ship from the possession of the captors, that alone is a hostile act; and however innocent in other respects the ship and cargo may be, they are justly subjected thereby to confiscation."

A lawful rescue can only be made by a captured belligerent.

Such a rescue is deemed a meritorious act, because purely voluntary on the part of those captured, and not their duty, as is that of recapture, which is the recovery by a friendly force, of a prize taken by, and in the possession of, an enemy.

Such being the established rule of international law, its repudiation was not to be expected on the part of a great nation whose authorities and precedents have, more largely than any other, contributed to the erection of that beautiful fabric, which upholds the great commonwealth of civilized states.

The British ship, Emily St. Pierre, in attempting to violate the blockade of the port of Charleston, South Carolina, was captured by a lawful cruiser of the United States government.

A prize master, with a small force, were placed on board, and proceeded to conduct the prize into a port of adjudication.

Relying too much upon the good faith and sense

of obligation to the supreme law, of the captured master and his crew, the captors humanely forebore to render an unlawful rescue impossible, by a confinement of their persons.

Had any well-grounded suspicions existed, of a want of that integrity, which the captors had a right to require, their rigid confinement would have been perfectly justifiable.

Taking advantage of their superior numbers, and of the generous but misplaced forbearance of the captors, the captured master and crew, forcibly and fraudulently, regained the possession and control of the ship, and with the prize master, and his small force on board, proceeded with her to Liverpool, England.

Arriving there, it might not unreasonably have been expected, that the public authorities, indignant at this flagrant outrage by a neutral upon belliger ent rights, would have needed no prompting to induce their immediate and efficient vindication of the violated law.

But the ship was a British ship, and was laden with a cargo which served to feed British manufac tories. And this infraction of public law, this act so criminal by the law of nations, as of itself to subject the vessel and cargo to confiscation, was hailed, by common consent, as an act of commend able bravery, not only lawful, but highly meritorious and honorable.

At public assemblages, receiving the sanction of public men, this British ship master and bis crew, were laden with encomiums, and rich pecu niary rewards, and the world has yet to learn of the utterance of any word of disapprobation of this